The Future of Siting and Building Energy Infrastructure

• Date: 01 April 2010

4-2010 NEWS & ANALYSIS 40 ELR 10363

D I A L O G U E

The Future of Siting and Building

Energy Infrastructure

January 13, 2010

Moderator:

Janice M. Schneider, Latham & Watkins LLP, Washington,

D.C.

Panelists:

Sharon Buccino, Director, Land and Wildlife Program,

Natural Resources Defense Council, Washington, D.C.

omas C . Jensen, Sonnenschein Nath & Rosenthal LLP,

Washington, D.C.

R. Jerey Lyman, Goodwin Procter LLP, Boston

Je C. Wright, Director, Oce of Energy Projects, Federal

Energy Regulatory Commission, Washington, D.C.

Janice M. Schneider: As we’ve seen in California and other

states, renewable portfolio standards and greenhouse gas leg-

islation are driving the need for expeditious renewable energy

development on the federal level. Of course, the American

Recovery and Reinvestment Act,1 also known as the Stim-

ulus Bill, committed an unprecedented amount of federal

resources toward development of renewable energy, but also

placed tight deadlines on the development of eligible proj-

ects. As everyone knows, renewable energy development is

also a key policy directive of the Obama Administration, in

particular to help address concerns related to climate change

and also to create new green jobs.

In its rst year, t he Administration has taken numer-

ous steps to facilitate renewable development. ese include

Interior Department Secretarial Order No. 3285, which pri-

oritizes renewable development and directs the U.S. Depart-

ment of the Interior [DOI] agencies to identify renewable

energy zones and transmission corridors, and to create renew-

able energy coordination oces to facilitate and streamline

permitting. e Administration has ta ken action to with-

draw certain public lands for solar development. ey’ve

developed programmatic analyses for renewable resources,

and they are fast-tracking certain projects. ey’ve created a

renewable energy policy group. ere’s a new MOU [Memo-

randum of Understanding ], a few months old, to expedite

permitting of transmission facilities across federal lands, and

the Adm inistration ha s similarly fast tracked certain tra ns-

mission projects. ere’s also an MOU resolving jurisdic-

tional issues between FERC [the Federal Energy Regulatory

Commission] and the Minerals Management Service for

renewable energy development on the outer continental shelf

1. Pub. L. No. 111-5, 123 Stat. 115 (2009).

and new Minerals Ma nagement Service regulations for leas-

ing oshore areas for renewable development.

While achieving a robust percentage of renewable energy

for the nation’s energy mix is a critical goal toward achiev-

ing energy independence—this so-ca lled green energy gold

rush—to develop these projects is not without some contro-

versy and opposition. ese projects must comply with tra-

ditional environmental review requirements including the

National Environmental Policy Act (NEPA),2 the Endan-

gered Species Act (ESA),3 and the National Historic Preser-

vation Act,4 just to name a few, and we’re starting to see the

rst wave of litigation against certain renewable projects.

Recently in West Virginia, the Beech Ridge Wind project

was enjoined under the ESA because the project did not have

an incidental take permit for listed Indiana bats. at injunc-

tion signicantly curtails operation of existing turbines and

halts construction of additional turbines until a n incidental

take permit is obtained from the U.S. Fish and Wildlife Ser-

vice. According to that project developer, the injunction will

cost them tens of millions of dollars in lost revenue and seri-

ously threaten its ability to access stimulus funding, which

they’ve estimated at about 30% of the project cost.

In California, the Sunrise Powerlink, a 120-mile 500-kV

[kilovolt] transmission line, which will hook San Diego into

vast renewable resources —geothermal, wind, and solar in

the Imperial Valley of California—has already been chal-

lenged in state court and is expected to be challenged in

federal court t his year on NEPA, ESA, and national forest

management grounds.

Last week, the New York Times carried a front page article

about how the Cape Wind project o Cape Cod, Martha’s

Vineyard, and Nantucket Isla nd in Massachusetts was dea lt

a potential blow when the National Park Service’s Keeper of

the National Register determined that the entirety of Nan-

tucket Sound is a traditional cultural property under the

National Historic Preservation Act and is eligible for listing

on the National Register of Historic Places.5

Litigation is not the only forum at issue. Legislators have

also gotten into the act. Sen. Dianne Feinstein (D-Cal.)

introduced S. 2921, the California Desert Protection Act,

just before the holidays. at bill, if enacted, would set aside

and place into preservation status approximately one million

2. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.

3. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.

4. Pub. L. No. 89-665, 80 Stat. 915 (1966) (codied at 16 U.S.C. §§470 to

470x-6).

5. Abby Goodnough, For Cape Cod Wind Farm, New Hurdle Is Spiritual, N.Y.

T, Jan. 5, 2010, at A11.

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